Cong v Shen [2020] NSWSC 945

Supreme Court New South Wales

Medium Neutral Citation: Cong v Shen [2020] NSWSC 945 Hearing dates: 13 July 2020 Date of orders: 24 July 2020 Decision date: 24 July 2020 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Dismiss the first and second defendants' notice of motion filed 9 July 2020. (2) Direct the parties to file within seven days agreed (or, if not agreed, competing) short minutes of order, reflecting these reasons, to put in place a regime whereby (on the plaintiffs' usual undertaking as to damages and supported by the Deed Poll previously provided to the Court) in place of the existing freezing orders the first and second defendants are restrained from transferring, alienating, further encumbering, removing from Australia or otherwise dealing with or disposing of their respective interests in the properties the subject of the existing freezing orders without first giving the plaintiffs 14 days' notice in writing of their intention to do so; or otherwise disposing of assets up to a limit of $6 million in the case of the first defendant or $1,700,000 in the case of the second defendant (but with a carve-out or exception, in the case of the first defendant of up to $17,000 per month for ordinary living expenses, plus school fees, or in the case of the second defendant of up to $2,000 per month for ordinary living expenses; and, together, of up to $100,000 for legal expenses for the conduct of the forthcoming hearing (and payable only to the defendants' legal representatives for that purpose); with a view to those orders being made in chambers and the existing freezing orders being discharged. (3) Reserve the costs of the respective notices of motion. Catchwords: CIVIL PROCEDURE — Interim preservation — Freezing orders — Application for variation after breach of orders — Application for discharge of orders on basis of oppressiveness of duplicated regime of orders and otherwise Legislation Cited: Civil Procedure Act 2005 (NSW), s 56 Conveyancing Act 1919 (NSW), ss 23C, 145 Succession Act 2006 (NSW), ss 57, 65, 66 Cases Cited: Allomak Ltd v Allan [2010] VSC 187 Banks v Goodfellow (No 2) (1871) LR 11 Eq 472 Bird v McComb (No 3) [2011] FCA 697 Birketu Pty Ltd v Westpac Banking Corporation (No 2) [2018] NSWSC 494 Blueseas Investments Pty Ltd v Mitchell (1999) 151 FLR 298; [1999] FamCA 745 Brand v Monks [2009] NSWSC 1454 Bridge Property Investments Pty Ltd v Garland Lot 3 Pty Ltd [2014] NSWCA 82 Brimaud v Honeysett Instant Print Pty Ltd (1988) 217 ALR 44 Clark Equipment Credit of Australia v Como Factors Pty Ltd (1988) 14 NSWLR 552 Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 Custom Credit Corporation Limited v Whitehall Holdings Pty Limited (Supreme Court (WA), 7 April 1992, unrep) Deputy Commissioner of Taxation v Gashi [2012] VSC 401 Deputy Commissioner of Taxation v Karas [2011] VSC 673 Dome Resources NL v Silver (2008) 72 NSWLR 693; [2008] NSWCA 322 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603; [2009] NSWCA 407 Gandy v Gandy (1885) 30 Ch D 57 Halifax v Chandler [2001] EWCA Civ 1750 In re Schebsman [1944] Ch 83 In the matter of Courtenay House Capital Trading Group Pty Limited (in liquidation) [2018] NSWSC 1918 Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8 Mackay v Dick (1881) 6 App Cas 251 Patterson v BTR Engineering (Aust) Ltd (1989) 18 NSWLR 319 PCW (Underwriting Agencies) Ltd v Dixon [1983] 2 All ER 158 Polly Peck International Plc v Nadir (Asil) (No 2) [1992] 4 All ER 769 Reid v Howard (1995) 184 CLR 1; [1995] HCA 40 Solomon v Corporate Affairs Commission (NSW) (1992) 10 ACSR 67 Stokes (by a tutor) v McCourt [2013] NSWSC 1014 Sundt Wrigley Co Ltd v Wrigley (Court of Appeal (UK), 23 June 1993, unrep) Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 TZ Ltd v ZMS Investments Pty Ltd [2010] NSWSC 196 Varley v Varley [2006] NSWSC 1025 Vasilaras and Co Pty Ltd v Laprese (2019) 58 VR 155; [2019] VSC 56 Texts Cited: J D Heydon, M J Leeming, P G Turner, Meagher, Gummow and Lehane's Equity: Doctrine and Remedies (5th ed, 2015, LexisNexis Butterworths) Category: Procedural and other rulings Parties: Edmund Bede Hao San Cong (First Plaintiff) Teresa Mae Yin Cong (Second Plaintiff) The estate of the late Laurence Xavier Xiao Ming Cong by its representatives Edmund Cong and Teresa Cong (Third Plaintiff) Yanjiao Shen (First Defendant) Yaqin Wu (Second Defendant) The estate of the late Zi Li Cong by its representative Tamara Goodwin (Third Defendant) Representation: Counsel: M Condon SC with P Sharp (Plaintiffs) D Smallbone (Defendants)